Matthew D. Ebeling v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ February 05, 2020

The Court of Appeals hereby passes the following order: A20D0282. MATTHEW D. EBELING v. THE STATE.

In 2013, Matthew D. Ebeling was convicted of one count each of robbery, simple battery, and false imprisonment. We affirmed Ebeling’s judgment of conviction in an unpublished opinion on direct appeal. Ebeling v. State, Case No. A19A1168 (Sept. 16, 2019). Our remittitur issued to the superior court on October 4, 2019. On December 13, 2019 – 70 days after our remittitur issued – Ebeling filed a motion to reduce/modify sentence in the superior court. The superior court denied the motion, and Ebeling filed this timely application for discretionary appeal. Under OCGA § 17-10-1 (f), a court may modify a sentence during the year after its imposition or within 120 days after remittitur following a direct appeal, whichever is later. See von Thomas v. State, 293 Ga. 569, 571 n. 5 (2) (748 SE2d 446) (2013); Frazier v. State, 302 Ga. App. 346, 348 (691 SE2d 247) (2010). The denial of a timely motion to reduce or modify sentence under § 17-10-1 (f) is subject to direct appeal. See Bowen v. State, 307 Ga. App. 204 (704 SE2d 436) (2010); Anderson v. State, 290 Ga. App. 890 (660 SE2d 876) (2008); Maldonado v. State, 260 Ga. App. 580 (580 SE2d 330) (2003). Ebeling’s motion here was timely under § 17- 10-1 (f), as it was filed within 120 days of our remittitur following his direct appeal. Under OCGA § 5-6-35 (j), this Court will grant a timely discretionary application if the lower court’s order is subject to direct appeal. Accordingly, this application is hereby GRANTED. Ebeling shall have ten days from the date of this order to file a notice of appeal with the superior court, if he has not already done so.

The clerk of the superior court is DIRECTED to include a copy of this order in the record transmitted to the Court of Appeals.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 02/05/2020 I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk.